tv Hearing Focuses on Whistleblower Protections CSPAN February 8, 2017 8:32am-9:18am EST
the first is administrative agency enforcement. despite past efforts, essential counsel was held off by trade-offs that resulted in almost no litigation and excessive delays. the unemployed whistle blowers could not afford and that undermined the relevance of decisions on current events. special counsel can never be more than anecdotal source of justice that makes impressive points. to consistently chief no remedial agency can substitute for due process and not getting it with the merit system
protection board. have been good faith stewards of the act but conducted by administrative judges who are openly hostile to the act, ruling against whistle blowers for 95% to 98% of the merits and combine that with ofc, 5% corrective action rate. whistle blowers do not have more than a token chance of justice under this law. fired after she challenged after the failure of proper attendance. her case has been pending for 7 years. the board overturned a hostile administrative judge decision that remanded reversing. the h.a. then held a hearing but never issued a decision. when the h. avolto a. retired, judge appointed but again did not rule. in may 2016, miss fearrington
protested the delays to the full board and the judge promptly responded with a june decision that rejected all of her claims without even referencing the hearing audio tape. there was no transcript because the court reporter died during the delays. due to vacancies, cannot issue decisions and no end in sight. the lack of credible due process at the mspb is the whistle blower's achilles' heel. made the law less effective because is it more difficult to fire employees? agencies are opening more retaliatory investigations with criminal prosecution referrals and currently, there is no defense against this even uglier form of harassharassment. our encompassing national move that was soon the entire merit system if congress does not act. and finally, lack of acceptance.
microcosm. immediately after his victory, tsa led four months and assigned to flights on the mideast, despite intelligence that isil is fighting identities of undercover air marshals and he was the most visible air marshal in history. after the ose intervened, assigned him to an empty room and forced him into bankruptcy. although he continues to make impressive disclosures, they will not assign him any duties due to lack of seniority caused. and required to forward it within 14 days. he is still lost by winning due to the poor attitudes. mr. chairman, my written testimony has a full menu of suggestions how to deal with these challenges. thank you. >> mr. devine, thank you so much for your passionate and
articulate testimony. and i can assure you that we will be following up in earnest. some of these things we were aware of, some obviously not but working with ose and making sure that their success rate is greater and not laborious is something that this committee is committed to, but thank you so much. >> ranking member cummings, chairman meadows and connelly and member of the subcommittee on government operations. thank you for inviting me to testify today and your dedication to ensuring proper implementation of whistle blower protections. five years ago, congress passed the whistle blower enhancement act upgrading for federal workers who blow the whistle on waste, fraud, abuse, and illegality. codified in the statute by senate judiciary chairman senator chuck grassley that requires agencies to notify
employees that statutory rights to communicate with congress and whistle blower protections supersesupe superse supersede. and may be protected including when a whistle blower makes a reasonable disclosure to his or her supervisor even when involved in the wrongdoing. and clarified the intent in making a disclosure should not be factored in when determine figure he or she made a protective disclosure. central channels to report to and being the primary public interest. finally, the law created a pilot program for federal employees who appeal a judgment of the merit system protection board for any jurisdiction. this committee led the charge in extending the pilot program two years ago and should now work to make that right permanent. while the positive impact of this law is significant, its enforcement has not been without issue. two years after the passage of
the wpea revealed that only one agency out of 15 studies was fully compliant with the provision of the law. this important provision has been called into question as recently as last week when several agencies ordered stop to cease or limit external communications. as members have recognized, these directives may violate the law. efforts to prevent government employees from communicating with congress and the public could represent a serious threat to public health and safety and continued congressional overnight is necessary to make sure that this important provision continues to be implemented properly. despite broad protection laws like the wpa and wpea, the totality of whistle blower protection laws include a patchwork of protections depending where a whistle blower works and what capacity. the wpea afforded new and necessary protections to many federal employees when it was enacted but excluded intelligence community contractors, despite having a proven track record of success with previous protections.
although i see contract whistle blowers have some protection under presidential policy directive 219, is too narrow and can be revoked at the president's discretion. must have safe channels to report abuse of power that betray the public trust and fill the accountability loopholes. the next must include protections for intelligence community contractors. congress should also consider acquiring mandatory punishment against supervisors who retaliate against whistle blowers. without mandatory punishment for those who retaliate, there's no substantial deterrents to violating these laws. any legislation should carefully balance due process rights of retaliatory actions with the proper chance to defense and appeal a final decision. recently, past legislation creates a minimum 12 day unpaid suspension when retaliated against a whistle blower is substantiated. this should serve as a model.
ranking member connelly, it's important to update a recent curtailing of whistle blower protections in cases where federal employees would break a rule or regulation created by the agency. another area of concern is the implementation of former president obama's insider threat program. this program was created in order to ensure responsible sharing and safeguarding of classified information. it includes a provision prohibiting the use of the program to identify or prevent lawful whistle blower disclos e disclosur disclosures. despite this, we've repeatedly training materials conflate whistle blowers like thomas drake like the terrorists. the opposite has assured pogo of corrected and general council office has prestigiously implemented for the intelligence community but increased congressional oversight may be helpful to make sure this program isn't used improperly. should create an office to work
with whistle blowers and provide advice to staff on working with whistle blowers. many of the issues hinge on congressional oversight. passing stronger laws is a necessary first step but continued congressional oversight ensures that whistle blowers are championed and not punished. i look forward to your questions and thank you again for holding this important hearing. >> thank you so much for your testimony. now, i'll recognize the gentleman from florida, mr. ross, for five minutes. >> thank you to the panel for being here very much. as we talk about the wpea, it leads one to believe it should have a dual purpose. a shield to protect those who have seen the wrongdoings or the corruption and allow them the opportunities and quite frankly the incentives to report them and then a sword to be able to come in and cut off the wrongdoing and enforce what needs to be done but it seems
through some of this testimony that the sword has been turned back and it's been turned back on the whistle blower. retaliatory investigations. it's said for every one whistle blower complaint that most cases, there's a countercomplaint against them by the person whom the case is lost. and the compliant to see whether it may be a counterand offices from employees and one of the things we take into account is a source of the information and evaluate that as we evaluate the
information. people may have lots of reasons they come forward and doesn't in any way invalidate the information they provide and in fact, can be very important information for us to have in order to conduct our oversight functions. so the primary thing we want to do is encourage people to be able to come forward and to be comfortable coming forward knowing that they'll be protected under the wpea. >> but will they really be protected? in other words, they make themselves subject to a countercomplaint if they're not careful and i think that's the protection i'm trying to make sure that we can nip in the bud either through cross referencing and the complaints or maybe there's something worked out to find that. >> it's a difficult question. there are competing interests here because we want to encourage legitimate investigations but don't want to deter people from coming forward with information and how do you strike that balance in a way
that protects whistle blowers and encourages them to come forward and certainly would be happy to work with ose, you, and the committee on that. >> that leads to my next question. how important is subpoena power? >> thank you for the question. subpoena power for us, we currently have under an opm rule. >> for documents or testimony? >> for both. but the issue we have that's a related issue is our access to information where we think it would be extremely helpful for congress to clarify, give a statutory direct access to all relevant information and documents and witnesses and not be subject to perhaps an incorrect assertion of attorney/client privilege by the agency, similar to what the ig currently has. so having that ability to know what the agency knows so that we can investigate whether wrongdoing occurred is essential. >> if somebody files an
objection to the subpoena, is it an alj? who decides the enforcement? >> it's a process. >> mr. devine pointed out. it would be bottleneck. >> they would not move forward with that. if there was a quorum, the mspd, not the omd, would make that. >> and still would have to be enforced eventually in district court. okay. lastly, there's been positives but i think the sword should be, can you articulate in any way what additional measures of enforcement may be necessary in order to make it really effective? because as one who is a student of the law, you know, deterrents have an impact on future behavior and future performance, especially if somebody decides that they don't want to have
that repercussions against them if they know what the law would be and how it's enforced. >> disciplinary actions play an important deterrent role in the federal government and have a ripple effect to show managers can be held accountable and ose, though, we have made a decision though that we need to prioritize getting the whistle blower back on their feet and job and protect them first. to the extent we can though, i think we're proud of the fact we've been able to increase the number of disciplinary actions by 117% since the wppa was passed but with additional resources, i think we can do better than that. >> i yield and thank you. >> thank you for the ranking member. >> i thank my friend and welcome again to our panel. mr. storch, do you recall that back in 1988, a long time ago,
then senator chuck grassley who's still with us in the senate, been there a long time, he had something called the anti-gag rule. can you describe that to us if you're familiar with it? anyone familiar with it? >> yes, mr. devine. >> it's without prior approval and classifiable is assigned as any information that could or should have been classified, it created basically official secret set. the restrictions on funding to implement or enforce that were passed unanimously without exception through the time of the wpea when congress codified
those rights, sir. we have the acting secretary of the department of health and human services, very first day of the new administration writing, quote, no correspondence to public officials, for example, congress and governors, his example, not mine, unless specifically authorized by me or designee sent between now and february 3rd. how does that comport with the anti-gag provision of the whistle blower protection act? >> well, the official who issued the order said new team, new rules but the new rules cancel the rule of law, congressman.
it violates three provisions in the whistle blower enhancement act and two appropriations writers and the act of 1912 and by the way, the first amendment. >> oh. it's just helpful guidance. >> anyone want to come forward? mr. devine has just said what i read from a member of the new administration violates the law in a number of laws and the constitution itself in a number of respects. in the department of justice, would you concur? >> i would a prosecutor at the time of senator grassley's rule that you referred to but i have been with the office of the inspector general and acting for the oig for the last 4.5 years and i'm very familiar with the provision of the